Report Title:
Recycling; Beverage Container Bill
Description:
Establishes the deposit beverage container program. Imposes deposit beverage container requirements and fees. Requires beverage distributors to register with the State. Establishes the deposit beverage container program special fund. Provides for the redemption of empty beverage containers. Provides requirements for recycling facilities and redemption centers. Repeals part VII, chapter 342G (glass container recovery). (SB2266 HD2)
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THE SENATE |
S.B. NO. |
2266 |
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TWENTY-FIRST LEGISLATURE, 2002 |
S.D. 1 |
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STATE OF HAWAII |
H.D. 2 |
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A BILL FOR AN ACT
RELATING TO RECYCLING.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that recycling is an important element of an integrated solid waste management system to protect and preserve environmental resources and reduce economic costs to residents and businesses within the State. The legislature recognizes that participation in recycling programs must be expanded to reduce litter and to minimize costs to those participating and to government.
The purpose of this Act is to establish a beverage container recycling program to:
(1) Increase participation and recycling rates for beverage containers;
(2) Provide a connection between manufacturing decisions and recycling program management; and
(3) Reduce litter.
SECTION 2. Chapter 342G, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:
"PART . DEPOSIT BEVERAGE CONTAINER PROGRAM
§342G-A Definitions. As used in this part, unless the context requires otherwise:
"Consumer" means a person who buys a beverage in a deposit beverage container for use or consumption and pays the deposit.
"Dealer" means a person who engages in the sale of beverages in deposit beverage containers to a consumer for off-premises consumption in the State.
"Department" means the department of health.
"Deposit beverage" means beer, ale, wine, spirits, or other drink produced by fermenting malt, mixed spirits, mixed wine, tea and coffee drinks regardless of dairy-derived product content, soda, or noncarbonated water, and all nonalcoholic drinks in liquid form and intended for internal human consumption that is contained in a deposit beverage container.
The term "deposit beverage" excludes the following:
(1) A liquid that is:
(A) A syrup;
(B) In a concentrated form; or
(C) Typically added as a minor flavoring ingredient in food or drink, such as extracts, cooking additives, sauces, or condiments;
(2) A liquid that is ingested for medicinal purposes only;
(3) A liquid that is designed and consumed only as a nutritional supplement and not as a beverage;
(4) Products frozen at the time of sale to the consumer, or, in the case of institutional users such as hospitals and nursing homes, at the time of sale to the users;
(5) Products designed to be consumed in a frozen state;
(6) Instant drink powders;
(7) Seafood, meat, or vegetable broths, or soups, but not juices; and
(8) Milk and all other dairy-derived products, except tea and coffee drinks with trace amounts of these products.
"Deposit beverage container" means the individual, separate, sealed glass, polyethylene terephthlate, high density polyethylene, or metal container less than or equal to sixty-four fluid ounces, used for containing, at the time of sale to the consumer, a deposit beverage intended for use or consumption in this State.
"Deposit beverage distributor" means a person who is a manufacturer of beverages in deposit beverage containers in this State, or who imports and engages in the sale of filled deposit beverage containers to a dealer or consumer. The term includes federal agencies and military distributors, but does not include airlines and shipping companies that merely transport deposit beverage containers.
"Import" means to buy, bring, or accept delivery of deposit beverage containers from an address, supplier, or any entity outside of the State.
"Importer" means any person who buys, brings, or accepts delivery of deposit beverages containers from outside the State for sale or use within the State.
"Initiate a deposit" means to be the first person to charge a deposit on a specific deposit beverage container.
"Month of record" means the month covered within the report.
"On-premises consumption" means to consume deposit beverages by a customer immediately and within the area under control of the establishment, including bars, restaurants, passenger ships, and airplanes.
"Person" means individual, partnership, firm, association, public or private corporation, federal agency, the State or any of its political subdivisions, trust, estate, or any other legal entity.
"Program" means the deposit beverage container program established by this part.
"Recycling facility" means all contiguous land and structures and other appurtenances, and improvements on the land used for the collection, separation, recovery, and sale of reuse of secondary resources that would otherwise be disposed of as municipal solid waste, and is an integral part of a manufacturing process aimed at producing a marketable product made of postconsumer material.
"Redeemer" means a person, other than a dealer or distributor, who demands the refund value in exchange for the empty deposit beverage container.
"Redemption center" means an operation that accepts from consumers and provides the refund value for empty deposit beverage containers intended to be recycled and ensures that the empty deposit beverage containers are properly recycled.
"Refillable beverage container" means any deposit beverage container that ordinarily would be returned to the manufacturer to be refilled and resold.
"Reverse vending machine" means a mechanical device, which accepts one or more types of empty deposit beverage containers and issues a redeemable credit slip with a value not less than the container's refund value. The refund value payments shall be aggregated and then paid if more than one container is redeemed in a single transaction.
§342G-B Establishment of the deposit beverage container program; deposit fee. (a) There is established the deposit beverage container program to be administered by the department. The program shall establish container and deposit fees for deposit beverage containers.
(b) Beginning on October 1, 2003, every deposit beverage distributor shall pay to the department a deposit beverage container fee on each deposit beverage container manufactured or imported into the State. The fee shall be imposed only once on the same beverage container. The fee shall be 1 cent per beverage container.
(c) The deposit beverage container fee shall not exceed 1 cent per container for the first seven years of operation of the program.
(d) The department, with the assistance from the county solid waste agencies, shall:
(1) Evaluate the amount of deposit beverage containers recovered during the first fifteen months of the full implementation of the program; and
(2) Recommend to the legislature any modification in the fee structure to meet the program requirements.
Thereafter, prior to the convening of the regular legislative session in each subsequent even-numbered year, the department, in coordination with the counties, shall report to the legislature on the effectiveness of the program and make appropriate recommendations for modification of the fee.
(e) No county shall impose or collect any assessment or fee on deposit beverage containers for the same or similar purpose that is the subject of this chapter.
§342G-C Deposit beverage distributors; registration, record keeping requirements. (a) By July 1, 2003, all deposit beverage distributors operating within the State shall register with the department, using forms prescribed by the department, and shall notify the department of any change in address or other information previously submitted. After July 1, 2003, any person who desires to conduct business in the State as a deposit beverage distributor shall register with the department no later than one month prior to the commencement of the business.
(b) All deposit beverage distributors shall maintain records reflecting the manufacture of their beverages in deposit beverage containers as well as the importation and exportation of deposit beverage containers. The records shall be made available, upon request, for inspection by the department; provided that any proprietary information obtained by the department shall be kept confidential and shall not be disclosed to any other person, except:
(1) As may be reasonably required in an administrative or judicial proceeding to enforce any provision of this chapter or any rule adopted pursuant to this chapter; or
(2) Under an order issued by a court or administrative agency hearings officer.
§342G-D Deposit into deposit beverage container program special fund; use of funds. (a) There is established in the state treasury the deposit beverage container program special fund into which shall be deposited:
(1) All revenues generated from the deposit beverage container fee as established under section 342G-B;
(2) All revenues generated from the deposit beverage container deposit as described under section 342G-J; and
(3) All accrued interest from this fund.
(b) Moneys in the fund shall be used to reimburse refund values and pay handling fees to redemption centers as established under this part. The department may also use the money to:
(1) Fund administrative, audit, and compliance activities associated with collection and payment of the deposits and handling fees of the program;
(2) Conduct recycling education and demonstration projects;
(3) Promote recyclable market development activities;
(4) Support the handling and transportation of the deposit beverage containers to end-markets;
(5) Hire personnel to oversee the implementation of the program, including permitting and enforcement activities; and
(6) Fund associated office expenses.
(c) The department shall use the money to defray and pay the costs of the auditor in conducting an annual management and financial audit of the program.
§342G-E Deposit beverage container inventory report and payment. (a) Beginning October 1, 2003, payment of the deposit beverage container fee shall be made monthly based on inventory reports of the deposit beverage distributors. All deposit beverage distributors shall submit to the department documentation in sufficient detail that identifies:
(1) The number of beverages in deposit beverage containers by container size and type manufactured in or imported to the State; and
(2) The number of these deposit beverage containers by container size and type exported and intended for consumption out of the State during the reporting period.
(b) The amount due from deposit beverage distributors shall be the net number of deposit beverage containers imported or manufactured into the State (the total number of containers imported or manufactured less the total number of containers exported for consumption outside the State) multiplied by the deposit beverage container fee of 1 cent. Payment shall be made by check or money order payable to the "Department of Health, State of Hawaii". All inventory reports and payments shall be made no later than thirty days after the month of record.
(c) The deposit beverage distributor shall charge the dealer or consumer an amount equal to the deposit beverage container fee at the point of sale of the beverage as a separate line item on the invoice.
§342G-F Contract for administrative services. The department may contract the services of a third party to administer the program.
§342G-G Annual management and financial audit. The auditor shall conduct an annual management and financial audit of the program and shall submit the audit report, including the amount of unredeemed refund value and recommendations, to the legislature no later than twenty days prior to the convening of each regular session. The costs incurred by the auditor for the audit shall be reimbursed by the deposit beverage container program special fund. The auditor may contract the audit services of a third party to conduct the audit.
§342G-J Initiation and application of deposits. (a) Beginning January 1, 2005, every deposit beverage container sold in this State shall have a refund value of 4 cents. Each container shall have the refund value clearly indicated on it as provided in section 342G-L.
(b) The refund value is the amount of the deposit required. Once an indication of refund has been applied to a deposit beverage container, the deposit value on that container may not be changed.
(c) The deposit on each filled deposit beverage container shall be initiated by the deposit beverage distributor, who manufactures or imports beverages in deposit beverage containers, and paid to the State of Hawaii. The funds shall be deposited into the deposit beverage container program special fund.
(d) Deposit beverage distributors who are required under subsection (c) to initiate a deposit shall also pay a deposit beverage container fee and register with the State in accordance with this part.
§342G-K Sales of beverages in deposit beverage containers. (a) Every deposit beverage distributor who initiates a deposit shall charge the dealer or consumer a deposit equal to the refund value for each deposit beverage container sold in Hawaii.
(b) Each dealer shall charge the consumer the deposit beverage container deposit at the point of sale of the beverage excluding sales as defined as for on-premises consumption. The deposit charge shall appear as a separate line item on the invoice. The deposit charge may be combined with the deposit beverage container fee provided for in section 342G-B.
§342G-L Deposit beverage container requirements. (a) Except as provided in subsection (b), every deposit beverage container sold in this State shall clearly indicate the refund value of the container and the word "Hawaii" or the letters "HI". The names or letters representing the names of other states with comparable deposit legislation may also be included in the indication of refund value. Other indications may be required as specified in rules.
(b) Subsection (a) does not apply to any type of refillable glass beverage container that has a brand name permanently marked on it and that has the equivalent of a refund value of at least 4 cents for which is paid upon receipt of such container by a dealer or distributor.
§342G-M Redemption of empty deposit beverage containers. (a) Except as provided in subsection (b), a dealer shall:
(1) Operate a certified redemption center by accepting all types of empty beverage containers with a Hawaii refund value;
(2) Pay to the redeemer the full refund value for all deposit beverage containers that bear a valid Hawaii redemption value; and
(3) Ensure each container collected is recycled, and forward documentation necessary to support claims for payment as stated in section 342G-S, or rules adopted under this part.
(b) Subsection (a) shall not apply to any dealer:
(1) Who is located in a high density population area as defined by the director in rules, and within five miles of a certified redemption center that is operated independently from a dealer;
(2) Located in an area other than a high density population area, and within five miles of a certified redemption center that is operated independently from a dealer;
(3) Who subcontracts with a certified redemption center for operation on the dealer's premises;
(4) Whose sale of deposit beverage containers are only via vending machines;
(5) Whose store size is less than five thousand square feet of interior space;
(6) Who can demonstrate physical hardship, or financial hardship, or both, based on specific criteria established in rules; or
(7) Who meet other criteria established by the director.
Notwithstanding section (b)(1) and (b)(2), the director may allow the placement of redemption centers at greater than prescribed distances to accommodate geographical features while assuring adequate consumer convenience.
(c) All dealers, regardless of square footage, shall post a clear and conspicuous sign at each public entrance to the dealer's place of business, which specifies the name, address, and hours of operation of the closest redemption center locations.
(d) If there is no redemption center within the five-mile radius of a dealer due to the criteria described in subsection (b), then the respective county and the State shall determine the need for a redemption center in that area. If a redemption center is deemed necessary, then the State, with assistance from the county, shall establish the redemption center with funding from the deposit beverage container program special fund.
(e) Commercial operations such as hotels, bars, and restaurants, shall use a certified redemption center for the collection of containers, or become a certified redemption center, in order to maintain accountability in the system.
§342G-N Redemption centers. (a) Applications for certification as a redemption center shall be filed with the department of health on forms prescribed by the department.
(b) The State, at any time, may review the certification of a redemption center. After written notice to the person responsible for the establishment and operation of the redemption center and to the dealers served by the redemption center, the State, after it has afforded the redemption center operator a hearing in accordance with chapter 91, may withdraw the certification of the center if it finds that there has not been compliance with applicable laws, rules, permit conditions, or certification requirements.
(c) Redemption centers shall:
(1) Accept all types of empty deposit beverage containers for which a deposit has been initiated;
(2) Pay to the redeemer the full refund value for all beverage containers;
(3) Verify that all containers to be redeemed bear a valid Hawaii redemption value;
(4) Accept all deposit beverage containers that are crushed or destroyed at the time of redemption;
(5) Ensure each container collected is recycled through a contractual agreement with an out-of-state recycler or an in-state recycling facility permitted by the department; provided that this paragraph shall not apply if the redemption center is operated by a recycler permitted by the department; and
(6) Forward the documentation necessary to support claims for payment as stated in section 342G-S.
(d) Redemption centers' redemption areas shall be maintained in full compliance with applicable laws and with the orders and rules of the department of health, including permitting requirements, if deemed necessary, under chapter 342H.
§342G-O Reverse vending machine requirements. Reverse vending machines may be used by redemption centers to satisfy the requirements of section 342G-M; provided that the reverse vending machine shall accept any type of empty deposit beverage container and pay out appropriate refunds via a redeemable voucher for those containers that bear a valid Hawaii redemption value. If the reverse vending machine is unable to read the Hawaii refund value, then the department shall specify a delayed date in which the reverse vending machines may be used. The reverse vending machine shall be routinely serviced to ensure proper operation and continuous acceptance of containers and payment of refunds. All deposit beverage containers accepted by a reverse vending machine shall either be crushed or destroyed at the point of redemption.
§342G-P Refusal of acceptance of a deposit beverage container. Redemption centers shall refuse to accept any broken bottle, corroded or dismembered can, flattened can, or polyethylene terephthlate bottle, or any deposit beverage container that:
(1) Contains a free flowing liquid;
(2) Does not properly indicate a refund value; or
(3) Contains a significant amount of foreign material.
§342G-Q Handling fees and redemption values. (a) The State shall pay to each certified redemption center a handling fee of not less than 1 cent for each deposit beverage container redeemed by a consumer that is transported out-of-state or received by an approved in-state company for an approved end use for recycling or received by a department permitted recycling facility. The handling fee shall be paid in addition to the redemption value of each such empty beverage container. The department may choose to pay the handling fee and redemption value on the basis of the total weight of the containers received by material type and the average weight of each container type. Such conversions shall be defined in rules.
(b) A handling fee and redemption value may only be paid once for each container redeemed by a consumer and claimed by a redemption center.
§342G-R Distributor record keeping and payment requirements. (a) Each distributor who initiates a deposit on a deposit beverage container shall maintain a record of all deposits initiated and paid to the State. Each distributor shall maintain this information according to generally accepted accounting principles and shall provide monthly reports of this information to the director no later than thirty days after the month of record.
(b) The monthly report shall contain at a minimum:
(1) The quantity of distributed containers by material type;
(2) The amount of deposit beverage container fee and refund value by container size and type; and
(3) Any other information required by the director.
(c) Payment of the deposits shall be submitted with the monthly reports.
§342G-S Redemption center reporting. A redemption center shall prepare and maintain records, which reflect:
(1) The transactions made;
(2) The amount and type of containers accepted and rejected;
(3) Refunds paid out;
(4) The amount and weight of each type of containers transported out-of-state or to a department-permitted recycling facility; and
(5) Any other information required by the department.
§342G-T Recycling facility reporting. Recycling facilities, in addition to any requirements under chapter 342H, shall prepare or maintain the documents involving empty beverage containers, as required by the department.
§342G-U Audit authority. The records of the deposit beverage distributor, dealer, redemption center, and recycling facility shall be made available, upon request, for inspection by the department or a duly authorized agent of the department. Any proprietary information obtained by the department shall be kept confidential and shall not be disclosed to any other person, except:
(1) As may be reasonably required in an administrative or judicial proceeding to enforce any provision of this chapter or any rule adopted pursuant to this chapter; or
(2) Under an order issued by a court or administrative agency hearings officer.
§342G-V General prohibition. All contracts or agreements entered into between or among persons subject to this part shall be consistent with this part and any implementing rules. No such contract or agreement may be designed to hinder or frustrate the purpose or intent of this part.
§342G-W Rules; commencement. The department may adopt rules pursuant to chapter 91 as may be necessary for the purposes of this part. The rules shall be adopted on or before December 31, 2003. Full implementation of the program shall commence no later than January 1, 2005."
SECTION 3. Section 342G-71, Hawaii Revised Statutes, is amended to read as follows:
"[[]§342G-71[]] Penalties. Any person who violates any provision of this chapter or any rule adopted pursuant to this chapter shall be fined not more than $10,000 for each separate offense. Each day of each violation shall constitute a separate offense. Any action taken to impose or collect the penalty provided for in this section shall be [considered a civil action.] made through field citations or administrative, civil, or criminal actions."
SECTION 4. Section 342G-72, Hawaii Revised Statutes, is amended to read as follows:
"[[]§342G-72[]] Enforcement. [The department of health shall enforce this chapter.] (a) If the director determines that any person has violated or is violating any provision of this chapter, any rule adopted pursuant to this chapter, or any term or condition of a permit issued pursuant to this chapter, the director may do any one or more of the following:
(1) Issue a field citation assessing an administrative penalty and ordering corrective action immediately or within a specified time;
(2) Issue an order assessing an administrative penalty for any past or current violation;
(3) Require compliance immediately or within a specified time; and
(4) Commence a civil action in circuit court in which the violation occurred or where the person resides or maintains the person's principal place of business for appropriate relief, including a temporary, preliminary, or permanent injunction, the imposition and collection of civil penalties, or other relief.
(b) Any order issued pursuant to this section may include a suspension, modification, or revocation of a certification issued under this chapter, and shall state with reasonable specificity the nature of the violation.
(c) Any order issued under this chapter shall become final, unless not later than twenty days after the notice of order is served, the person or persons named therein request in writing a hearing before the director. Any penalty imposed under this chapter shall become due and payable twenty days after the notice of penalty is served unless the person or persons named therein request in writing a hearing before the director. Whenever a hearing is requested on any penalty imposed under this chapter, the penalty shall become due and payable only upon completion of all review proceedings and the issuance of a final order confirming the penalty in whole or in part. Upon request for a hearing, the director shall require that the alleged violator or violators appear before the director for a hearing at a time and place specified in the notice and answer the charges complained of.
(d) Any hearing conducted under this section shall be conducted as a contested case under chapter 91. If after a hearing held pursuant to this section, the director finds that a violation or violations have occurred, the director shall:
(1) Affirm or modify any penalties imposed or shall modify or affirm the order previously issued; or
(2) Issue an appropriate order or orders for the prevention, abatement, or control of the violation involved, or for the taking of such other corrective action as may be appropriate.
If, after a hearing on an order or penalty contained in a notice, the director finds that no violation has occurred or is occurring, the director shall rescind the order or penalty. Any order issued after hearing may prescribe the date or dates by which the violation or violations shall cease and may prescribe timetables for necessary action in preventing, abating, or controlling the violation.
(e) If the amount of any penalty is not paid to the department within thirty days after it becomes due and payable, the director may institute a civil action in the name of the State to collect the administrative penalty that shall be a government realization. In any proceeding to collect the administrative penalty imposed, the director need only show that:
(1) Notice was given;
(2) A hearing was held or the time granted for requesting a hearing expired without a request for a hearing;
(3) The administrative penalty was imposed; and
(4) The penalty remains unpaid.
(f) In connection with any hearing held pursuant to this section, the director shall have the power to subpoena the attendance of witnesses and the production of evidence on behalf of all parties."
SECTION 5. Part VII of chapter 342G, Hawaii Revised Statutes, is repealed.
SECTION 6. In codifying the new sections added by section 2 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.
SECTION 7. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 8. This Act shall take effect on July 1, 2050.